Rethinking The Principle of Sovereign Equality

543731
research-article2014
MIL0010.1177/0305829814543731Millennium: Journal of International StudiesAalberts
MILLENNIUM Journal of International Studies
Conference Article
Millennium: Journal of
Rethinking the Principle of

International Studies
2014, Vol. 42(3) 767–789
© The Author(s) 2014
(Sovereign) Equality as a Reprints and permissions:
sagepub.co.uk/journalsPermissions.nav
Standard of Civilisation DOI: 10.1177/0305829814543731
mil.sagepub.com
Tanja E. Aalberts
VU university, Amsterdam, The Netherlands
Abstract
The standard of civilisation is most often identified as the infamous legal doctrine that legitimised
imperialist rule and the exclusion of non-European non-Christian states from the international
society. In disciplinary narratives of both International Relations and International Law this colonial
project is usually presented as a mere interlude on the way to a mature and inclusive international
society based sovereign equality as its organising principle. In line with more critical historiography,
which shows how colonialism is the condition of possibility for both sovereignty and international
law, this article investigates how a standard of civilisation is inherent in political legal practices of
international ordering. Moreover, while usually presented as a practice of exclusion, this article
will analyse the more intricate dynamic of inclusion and exclusion as a basis for international order
by addressing the legal politics of subjecthood (as objects and subjects of the imagined global
regime). More specifically, it will address how law operates as a technology through the interplay
between a standard of civilisation, the principle of equality and legal subjectivity. The article will
look into legal practices of different historical periods (in the age of discovery, during the colonial
expansion, and in modern international society) to analyse the workings and transformations
of these legal technologies. Together this will show how an (implicit) standard of civilisation
is entrenched in the operation of law as a technology of international order. This does not
stop with the universalisation of sovereign equality as the organising principle of an inclusive or
‘global’ international society. This article will argue that this reveals the productive power of law
which functions not just as a juridical rule to regulate relations between independent and equal
sovereign subjects, but operates as the norm to produce appropriate sovereigns as members of
the international society.
Keywords
standard of civilisation, politics of international law, equality, sovereignty, governmentality,
imperialism, liberal internationalism
Corresponding author:
Tanja E. Aalberts, Centre for the Politics of Transnational Law, VU university, Amsterdam, De Boelelaan
1105, 1081 HV, Amsterdam, The Netherlands.
Email: t.e.aalberts@vu.nl
768 Millennium: Journal of International Studies 42(3)
Introduction
Disciplinary narratives in International Relations traditionally situate the globalisation of
international society with the post-World War II transfer of sovereignty to former colo-
nies and the expulsion of non-sovereign categories from the international plane. Legal
discourse rather locates the expansion of international society a century earlier, when
international law was sought to regulate the imperialist encounters and colonies were
incorporated as objects of a global legal regime. While focusing on different periods,
both narratives rely on an evolutionary perspective, in which international law figures as
both symptom and cause of the evolution of international society,1 as it moves from an
exclusive European club to an inclusive community of sovereign states. In this progres-
sive narrative, the colonial period was a mere interlude on the way to a mature interna-
tional society, from 1648 to 1945 (if we take the founding of the United Nations as
symbolic for its maturation), or the 1960s (the big wave of decolonisation).2
This perspective on the development of international law has been forcefully coun-
tered by recent historiography that inter alia shows how colonialism was the condition of
possibility for the development of both sovereignty and international law as institutions
of international society.3 Vice versa, 19th-century positivist international law was at once
instrumental in governing international society. Moreover, the global realm as something
to be governed existed before the emergence of modern international society, as a com-
munity between sovereign states. This transpires very clearly from the work of Francisco
de Vitoria, who is usually conceived as one of the founding fathers of international law.
His most important work, De Indes Novieter Inventis (1557/1917), is a lecture on the
perennial question of how to govern relations and intercourse between different com-
munities. While not yet an international issue in conventional modern terms, writing in
the age of discovery this became a pressing question as the Europeans were confronting
non-European communities in their expeditions across the globe.
1. Casper Sylvest, ‘ “Our Passion for Legality”: International Law and Imperialism in Late
Nineteenth-Century Britain’, Review of International Studies 34, no. 3 (2008): 403–23, 405.
2. For a problematisation of such benchmark dates, Benjamin de Carvalho, Halvard Leira
and John M. Hobson, ‘The Big Bangs of IR: The Myths that your Teachers Still Tell You
about 1648 and 1919’, Millennium 39, no. 3 (2011): 735–58; Barry Buzan and George
Lawson, ‘Rethinking Benchmark Dates in International Relations’, European Journal of
International Relations 20, no. 2 (2014): 437–62.
3. Of crucial significance are Antony Anghie, Imperialism, Sovereignty and the Making of
International Law (Cambridge: Cambridge University Press, 2005) and Martti Koskenniemi,
The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960
(Cambridge: Cambridge University Press, 2001). Within IR the role of international law
in the (post)colonial project has been explored by, inter alia, Siba N’Zatioula Grovogui,
Sovereigns, Quasi Sovereigns, and Africans: Race and Self-Determination in International
Law (Minneapolis, MN: University of Minnesota Press, 1996); Edward Keene, Beyond
the Anarchical Society: Grotius, Colonialism and Order in World Politics (Cambridge:
Cambridge University Press, 2002); Paul Keal, European Conquest and the Rights of
Indigenous Peoples: The Moral Backwardness of International Society (Cambridge:
Cambridge University Press, 2003).
Aalberts 769
While colonialism is usually presented as a politics of exclusion, this article will ana-
lyse the more intricate interplay between inclusion and exclusion as a basis for imagining
and ordering global rule. It disrupts the popular distinction between a European zone of
law and an extra-legal zone in the colonies, by addressing the legal politics of subject-
hood that constituted both the colonial power and the colonial subject within a global
legal order. As forcefully argued by Antony Anghie,4 this also disrupts the commonplace
that international law is about the ‘regulation of relations between sovereign states’.5
Moreover, rather than focusing only on 19th-century legal practice as the age of (colo-
nial) expansion and globalisation of the international legal order, this article starts with
the premodern conceptions of the global rule of law, that shows a similar practice of in/
exclusion. While grounded in different doctrinal traditions, in both cases law functions
as a technology of government and power. Its politics not only reside in the instrumen-
talisation of law by the powerful in their imperialist projects, but also in its productive
power – law not merely regulates interactions between pre-existing entities, but at once
creates subjects to be governed. The article investigates how both premodern and mod-
ern legal practice in this regard was imagining and constituting ‘the global’ as a legal-
political space,6 as the condition of possibility for legitimising the colonial endeavour.
Rather than merely an imposition of imperial rule or conquering terra nullius, this con-
stituted a more intricate creation of subjectivity and legal personality of colonial entities,
as objects and subjects of the imagined global legal regime.
In order to develop this argument, the article will first engage with Vitoria’s De Indis,
which is generally considered to be the primitive origin of international legal scholar-
ship.7 Then it will discuss the politics of in/exclusion during 19th-century imperialism
through the work of important contemporary publicists like John Westlake and James
Lorimer. Two caveats are in order: first, though these are authoritative voices in the legal
debate, it would be wrong to conceive legal discourse as homogeneous at the time.
Nevertheless, both perspectives are illustrative of the politics of legal subjecthood at the
day, and show how law serves as a governmental technology that not merely regulates
international intercourse to establish and manage order, but to this end constitutes its own
subjects as part of a global legal order. As will be elaborated below, the principle of (sov-
ereign) equality is a crucial element of this practice of government. But rather than the
standard and liberal conception of sovereign equality as a(n absolute) right that follows
from the condition of states as autonomous and legally independent entities whose inter-
actions develop into an international society and from whose will international law ema-
nates, it will be argued that the principle of (sovereign) equality is a productive norm in
the project of mastering and ordering the globe via in/exclusion. As will be discussed in
4. Anghie, Imperialism.

5. As formulated in the classical Lotus case, PCIJ 1927 (series A) No. 10.
6. See Peter Sloterdijk, Im Weltinnenraum des Kapitals : für eine philosophische Theorie
der Globalisierung (Frankfurt am Main: Suhrkamp, 2004); Jens Bartelson, ‘The Social
Construction of Globality’, International Political Sociology 4 (2010): 219–35; R.B.J.
Walker, After the Globe, Before the World (London: Routledge, 2010).
7. David Kennedy, ‘Primitive Legal Scholarship’, Harvard International Law Journal 27, no.
1 (1986): 1–98.
the third section, its functioning as a norm continues in contemporary international soci-
ety where in tandem with the principle of self-determination, the universalisation of sov-
ereign equality turns into a norm to be equally sovereign. As such, it operates more as a
(republican) norm than a (liberal) right. It is in this context that we can conceive of the
principle of equality functioning as a standard of civilisation inherent in sovereignty as
still one of the key institutions of international society.
The second caveat concerns the possible impression of (re)producing a grand histori-
cal narrative. This is not the intention of the article. Without suggesting a linear progres-
sion and continuity in legal discourse across centuries, we can recognise how legal
rationalities based on particular constellations of sovereignty, legal subjecthood, and
equality serve as the basis for ordering the globe in different eras, and moreover, how a
standard of civilisation is inherent in such political legal practices of international
ordering.
The Age of Discovery

While generally identified as an important legal foundation of international law, reading
De Indis from a purely modern legal perspective is prone to anachronistic misunder-
standing.8 Not only was its author a Dominican monk and a theologist, but the text is
very much situated in the medieval order, with the dual authority of Emperor and Pope
on the one hand, and a theological methodology of legal doctrine, inspired by the writ-
ings of St Thomas Aquinas. Hence the text is interlarded with biblical references as
proofs of Vitoria’s legal claims. Moreover, it is inspired by the spread of the gospel as the
natural right of Christians. In addition, the text is written in the scholastic tradition, but
not free of teleological reasoning, or inconsistencies. That it is nevertheless identified as
one of the primate origins of modern international law, has among other things to do with
Vitoria’s move beyond medieval perspective of infidelity as a just cause for conquest.
Moreover, Vitoria refutes the universal authority of Emperor and Pope, and argues from
the original emergence of political communities (or what he calls ‘perfect communi-
ties’)9 as natural entities of the global community. As the author himself explains, the
treatise is occasioned by the controversy that emerged from the encounter with the abo-
rigines of the New World ‘commonly called Indians – who came forty years ago into the
power of Spaniards, not having been previously known to our world’.10
Vitoria systematically explores the rights by which the aborigines came under Spanish
sway. The central question is whether the Indian aborigines were true owners (of their
territory and other possessions) in public and private law prior to the Spanish encounter.
We do not need to go into the details of Vitoria’s meticulous rejection of seven proposed
but inadequate grounds for appropriation. They refer to the medieval governmental
8. Franciscus de Vitoria, De Indis et de Ivre Belli Relectiones (Washington, DC: Carnegie
Institution of Washington, 1917 [1539]).
9. According to Vitoria, ‘A perfect State or community … is one which is complete in itself,
that is, which is not a part of another community, but has its own laws and its own council
and its own magistrates’ (Vitoria, De Indis, 169).
10. Vitoria, De Indis, 116.
Aalberts 771
structure, but Vitoria refutes that Emperor and Pope would automatically have civil or
temporal power and dominium over the whole world, either on the basis of divine, natu-
ral or human law. This categorisation of law stems from Thomas Aquinas11 and is crucial
to understand both the puzzle that Vitoria was confronted with – as Bartelson aptly pin-
points: as a scholastic writer, Vitoria was ‘predisposed to find universality and same-
ness’, yet had to come to grips with a ‘striking plurality and otherness’ as a result of the
discovery of the New World12 – and his response to the legal problem, which reproduces
the divine premises of the universal legal order, but attributes the issue of ownership to
human law and the ius naturale as innate element of all humanity irrespective of
religion.13
In this context, Vitoria refers to the division of the world ‘after Noah’ into different
provinces and kingdoms, who appointed princes over themselves by common agree-
ment, the so-called perfect communities: ‘Herein it is manifest that before the coming of
Christ no one was vested with world-wide sway by divine law and that the Emperor can
not at the present day derive therefrom a title to arrogate to himself lordship over the
whole earth, and consequently not over the barbarians’.14 Hence the refusal of the abo-
rigines to recognise Papal and/or Imperial power is no legitimate basis to make war or
seize their goods. Neither does their identification as infidels, heathens, and sinners pre-
vent true ownership, as ‘God has given temporal goods to the good and the bad’.15 Vitoria
finally rejects their resemblance with slaves, infants and animals as a justification for
their conquest on the basis of a lack of ownership.
The determinate prerequisite for ownership is the capacity of reason, and this Vitoria
distils from practices, customs and institutions:
[Indians] are not unsound of mind, but have, according to their kind, the use of reason. This is
clear, because there is a certain method in their affairs, for they have polities which are orderly
arranged and they have definite marriages and magistrates, overlords, laws and workshops, and
have a system of exchange, all of which call for the use of reason; they also have a kind of
religion. Further, they make no error in matters which are self-evident to others; this is witness
11. In his Summa Theologica St Thomas Aquinas presents four categories of law: (i) lex aeterna
which refers to Divine Reason as the source or foundation of (the whole community of) the
universe; (ii) divine law, pertaining to supernaturally revealed precepts for the salvation of
man; (iii) ius naturale, or natural law as an innate element of all humanity (Christian or not),
by which humankind executes eternal law through natural inclination; and (iv) positive law,
which is the enactment of natural law principles as local laws within societies. It is through
the local enactments that plurality emerges; yet as all particularistic positive law is founded
on natural law, this plurality does not jeopardise the universal and unitary legal order which
serves the common good and ultimately salvation of men, which are equally subject to
divine power.
12. Jens Bartelson, A Genealogy of Sovereignty (Cambridge: Cambridge University Press,
1995), 128, who also provides an insightful discussion of how these different legal orders
are related.
13. Vitoria, De Indis, 123. See also Anghie, Imperialism, 13–31.
to their use of reason … Accordingly I for the most part attribute their seeming so unintelligent
and stupid to a bad and barbarous upbringing, for even among ourselves we find many peasants
who differ little from brutes.16
Vitoria here allegedly applies a kind of premodern standard of civilisation, based on a

comparison of institutional practices of different societies. However, apparently different
from its 19th-century successor, the logic is at first sight one of inclusion and sameness.
That is to say: the aboriginal customs and institutions in fact are judged to be similar
enough to be identified as political subcommunities, and to recognise their legal capacity
as members of the global community of mankind. Moreover, if they suffer from a lack of
knowledge, this is at least a vincible ignorance.17 Vitoria hence concludes that, like
Christians, the aborigines ‘undoubtedly had true dominion’.18
It is on the basis of these critical remarks about legitimacy of the Spanish conquest in
the New World, his rejection of Christianity as a universal standard and legitimation for
conquest, and the identification of barbarians as reasonably similar and equal in terms of
their legal capacity of true ownership that Vitoria is often identified as a kind of human-
itarian-avant-la-lettre. However, a close reading of the third section of De Indis makes
clear that both the conclusion of Vitoria’s rejection of the imperialist project, and the
conclusion that his work ultimately justifies the Spanish conquest, are premature.19 In
this section Vitoria presents seven or eight (he is unsecure about the validity of the last
one) grounds for appropriation, that could legitimise the Spanish conquest.20 However,
as this is written in a hypothetical modus representative of the scholastic tradition, it
ultimately remains inconclusive about the legitimacy of the Spanish conquest. What is of
most interest for the current discussion is the legal framework on the basis of which
Vitoria argues we need to judge the (il)legality or (in)justice of the conquest, and in par-
ticular how both the Spaniards and the Indians figure in this framework – how they are
identified as subjects within the law that through this very subjectivation seeks to govern
them.
In addition to the conclusions in the first section that the Indian aborigines have suf-
ficient reason, and legal capacity, for ownership, Vitoria identifies Spaniards and the
newly discovered Indians as fellows of global natural society, preordained from the days
of Noah in the divine world order, ‘when everything was in common’.21 The aboriginal
political communities hence are incorporated in the global legal community of
16. Vitoria, De Indis, 127–8.

19. See also Georg Cavallar, ‘Vitoria, Grotius, Pufendorf, Wolff and Vattel: Accomplices of
European Colonialism and Exploitation or True Cosmopolitans?’, Journal of the History of
International Law 10, no. 2 (2008): 181–209.
20. The seven adequate or legitimate titles are : (1) natural society and fellowship; (2) right to
spread Christianity; (3) protection of converted natives; (4) Christian prince given by Pope;
(5) protection again tyranny of native lords; (6) true and voluntary choice; (7) alliance and
friendship. A possible eighth title, which Vitoria is uncertain about, is defective intelligence
(Vitoria, De Indis, 151–62).
Aalberts 773
mankind,22 and as such subject to ius gentium as the natural or positive law of nations.23
This inclusion, however, turns out to be a double-edged sword, as it not only postulates
an equal right to particularity, difference and independence for the Indians, but also
obliges them to stick to the universal rules of ius gentium. Paramount for the just co-
existence of nations is the right to ‘travel and dwell’ (combined with the universal prin-
ciple to treat visitors well unless they misbehave) and the right to travel, both dictated by
natural and divine law and customary foundation for the good life in any society,24 as
well as the Christian right to preach, publish and propagate the Gospel.25 By objecting
and resisting these universal rights, the Indians are violating these defining principles of
‘natural society and fellowship’ to free trade and travel, and do an injury to the Spaniards,
and as such their acts of aggression in turn would legitimise the forceful measures by the
Spaniards:
[W]hen the Indians deny the Spaniards their rights [to trade and travel] under the law of nations
they do them a wrong. Therefore, if it be necessary, in order to preserve their right, that [the
Spaniards] should go to war, they may lawfully do so … [T]hey can make war on the Indians,
no longer as on innocent folk, but as against forsworn enemies, and may enforce against them
all the rights of war, despoiling them of their goods, reducing them to captivity, deposing their
former lords and setting up new ones, yet withal with observance of proportion as regards the
nature of the circumstances and of the wrongs done to them26
Thus the inclusion of the Indians in the global legal order of the ‘natural society’ basi-
cally legitimises their colonisation in which they actively partake. Moreover, it in turn
allows their disciplining. For while at face value postulating a proto liberal pluralist
vision on the co-existence of different communities with different values, religions and
habits, at the same time Vitoria also refers to an implicit standard of civilisation, where
Indians do not quite meet the standard of a perfect State.27 Like its more famous 19th-
century twin, this standard officially is dictated by institutional architecture and capacity
22. Wilhelm G. Grewe, The Epochs of International Law (Berlin: de Gruyter, 2000), 148.
23. Anghie, Imperialism, 20 identifies ius gentium as a form of natural law, but in fact Vitoria
is somewhat inconsistent with regard to his identification of ius gentium as either natural
or positive law. See also Pekka Niemelä, ‘A Cosmopolitan World Order? Perspectives on
Francisco de Vitoria and the United Nations’, in Max Planck Yearbook of United Nations
Law, Vol. 12, eds Armin von Bogdandy and Rüdiger Wolfrum (Leiden: Brill, 2008), 301–44,
318–19.
24. Here Vitoria refers to Matthew ch. 25, ‘I was a stranger and ye took me not in’, as proof
of the first proposition of the right to travel. Moreover, as their fellows and neighbours in
the natural society, the barbarians are bound to love the Spaniards as themselves, follow-
ing Matthew ch. 22, which also means that the Indians ‘may not causelessly prevent the
Spaniards from making their profit where this can be done without injury to themselves’
(Vitoria, De Indis, 152–3).
26. Vitoria, De Indis, 154, 155.
27. Keene, Beyond the Anarchical Society explores these two contradictory patterns of inter-
national order (tolerance and civilisation) through the work of Hugo Grotius, as another
founding father of modern international law.
for self-government. Here the metaphor of the infant comes in again, this time in its
paternalist implications. For whereas the metaphor on the one hand serves to reject the
argument that Indians are not true owners, as ‘the property of wards is not part of the
guardian’s property’, it does not mean that they are capable to govern themselves, judged
again by their habits and practices:
Although the aborigines in question are […] not wholly unintelligent, yet they are little short of
that condition, and so are unfit to found or administer a lawful State up to the standard required
by human and civil claims. Accordingly they have no proper laws nor magistrates, and are not
even capable of controlling their family affairs; they are without any literature or arts, not only
the liberal arts, but the mechanical arts also; they have no careful agriculture and no artisans;
and they lack many other conveniences, yea necessaries, of human life.28
Here we see the logic of Foucault’s society of normalisation at work, where membership
status, privilege and affiliation based on similarity and equality creates or imposes homo-
geneity, while at once making visible ‘all the shading of individual differences’ and gaps
ready to be managed.29 In other words, the Indian practices are similar enough to disclose
their reason and include them as equal members in the orbit of the universal legal order,
yet this also discloses that as its subjects they do not quite meet the standards of the law-
ful (Christian) state, which is universalised into a model for perfect communities under
ius gentium.30 This intricate play of inclusion, universalism, equality on the one hand,
and exclusion, particularity and difference on the other, then is translated into a respon-
sibility for the Spaniards, that bears striking resemblances to the later sacred trust of
civilisation:
It might, therefore, be maintained that in [the Indian] interests the sovereigns of Spain might
undertake the administration of their country, […] [I]f they are all wanting in intelligence, there
is no doubt that this would not only be permissible, but also a highly proper, course to take; nay,
our sovereigns would be bound to take it, just as if the natives were infants. The same principle
seems to apply here to them as to people of defective intelligence; and indeed they are no whit
or little better than such so far as self-government is concerned, or even than the wild beasts,
28. Vitoria, De Indis, 160–1.

29. ‘Within such a society, membership status, privilege and affiliation is supplemented by a
whole range of degrees of normality … In a sense, the power of normalization imposes
homogeneity; but it individualizes by making it possible to measure gaps, to determine
levels, to fix specialties and to render the differences useful by fitting them one to another. It
is easy to understand how the power of the norm functions within a system of formal equal-
ity, since within a homogeneity that is the rule, the norm introduces, as a useful imperative
and as a result of measurement, all the shading of individual differences’ (Michel Foucault,
Discipline and Punish: The Birth of a Prison [London: Allen Lane, 1977], 184). In his later
lectures, Foucault prefers to talk about normation, rather than normalization, to emphasise
the primary and foundational character of the norm as the basis to distinguish the abnormal
from the normal (Michel Foucault, Security, Territory, Population: Lectures at the Collège
de France, 1977–78 [Basingstoke: Palgrave Macmillan, 2007 (1978)], 56–7).
30. Anghie, Imperialism, 22–3. Says Vitoria (De Indis, 169): ‘[T]hat is imperfect in which there
is something wanting’.
Aalberts 775
for their food is not more pleasant and hardly better than that of beasts. […] Let this, however,
[…] be put forward without dogmatism and subject also to the limitation that any such
interposition be for the welfare and in the interests of the Indians and not merely for the profit
of the Spaniards.31
Protection and guardianship by the Spaniards in this regard are presented as a possible
lawful title under which Indians have come under the Spanish sway, in addition to the
Indians’ violation of the rules of the global international legal community of mankind,
and the waging of war as strategies to transform and discipline the Indians into a more
perfect community still.32
European Expansion
As aforementioned, legal discourse generally locates the expansion of international soci-
ety in the 19th century, when international law was transported to the non-European
context in order to regulate the imperialist encounters and when colonies were incorpo-
rated as objects of the European legal regime. As opposed to Vitoria’s recourse to natural
law as the foundation of the global legal order, the 19th-century publicists were relying
on positivist law to ground the colonial project. Somewhat paradoxically, it is precisely
the acknowledgement of law as a human institution that brought about the exclusionary
legal practice of a dictated distinction between civilised and uncivilised nations.33
Whereas the premodern jurisprudence of naturalism conceived of law as eternal norms
of justice, rendering it both naturally, God-given, universal, inclusive and immutable, the
shift to legal positivism led to a conception of law as an institution of European states,
which in turn obtained an absolute and supreme civilised status:
Once civilisation is related to the basic types of human association, it is no longer necessary to
be content with the mere enumeration and description of a bewildering number of civilisations.
It is then possible to evaluate and to measure individual civilisations in the light of a universally
applicable test of the degree of civilisation which any such particular endeavour has attained.34
Hence, in positivist jurisprudence ‘the myth of the state of nature is replaced … with the
myth of a fixed set of principles and a scheme of classifications which reveals itself to
the scrutiny of the expert jurist who uses this scheme to establish and develop

32. For a further exploration of war as an instrument of assimilation, see Anghie, Imperialism,
23–8.
33. In addition to this doctrinal shift, Keal identifies developments in social theory and inter-
national political economy as drivers of the shift in thinking about legal subjecthood (Paul
Keal, ‘ “Just Backward Children”: International Law and the Conquest of Non-European
Peoples’, Australian Journal of International Affairs 49, no. 2 [1995]: 191–206, 201–3).
See also Keene, Beyond the Anarchical Society.
34. Georg Schwarzenberger, ‘The Standard of Civilisation in International Law’, in Current
Legal Problems, eds George W. Keeton and Georg Schwarzenberger (London: Stevens &
Sons Ltd, 1955), 212–34.
international law’.35 This scheme, or rather the civilised core of the scheme, subsequently
obtained a ‘natural’ status, which then served as an objective and universal yardstick for
the required degree of civilisation. This fits with a second element of positivism hinted
at by Schwarzenberger’s statement: apart from the conception of law as manmade, as a
positive institution based on the consent of sovereigns, it is characterised by the endeav-
our to provide a scientific, consistent and truthful account as an objective alternative to
the subjective fallacies of naturalism. However, it required some legal gymnastics to
come to an internally consistent scheme, which resulted in the exclusion of barbarian
entities on the basis of the standard of civilisation as a legal mechanism, coupled to their
(partial) integration into the framework of positivist international law in its expansion
from a European to a global structure.36 An important caveat is in order, namely that
much of the legal colonial project was focused on regulating the intra-European rivalries,
rather than concerned with legitimating the colonial endeavours vis-à-vis its direct
objects. Rather than the specific purpose or addressees, what is of most interest for the
current discussion is the legal construction of sovereign subjecthood in relation to the
principle of equality and the standard of civilisation as practices of in/exclusion.
The puzzle that the 19th-century publicists faced derived from the apparent sovereign
behaviour of non-European entities. This is not only related to the degree of political
organisation of these aboriginal entities, making it impossible to consider the African
continent as terra nullius and free to be conquested, but, crucially, also transpired in
practices of treaty-making of indigenous rulers with European powers themselves.37
Within positivist jurisprudence, treaty-making counts as a principal source of law, based
on the consent of sovereign states.38 Treaties as such are indicators of the legal status of
their signatories, and treaty-making can hence involve an act of ‘implied recognition’ of
an entity’s status under international law. Apart from that, and reasoning the other way
around, the very possibility of entering into a treaty requires a minimally shared norma-
tive framework, that includes a conception of the institution ‘treaty’ as a legal instrument
which entails mutual obligations to signatory parties. The European/indigenous
35. Anghie, Imperialism, 55.

36. For a more elaborate discussion of the relationship between positivism and colonialism, see
Anghie, Imperialism, 40–65.
37. For a classic and comprehensive study of these practices and their legal significance, see
Charles Henry Alexandrowicz, The European-African Confrontation: A Study in Treaty
Making (Leiden: A.W. Sijthoff, 1973). See also Anghie, Imperialism, 67–82. This has also
informed a critical intervention into the English School ‘expansion’ thesis, and the distinc-
tion between international system and society on which it is based. See Tim Dunne and
Richard Little, ‘The International System–International Society distinction’, in Guide to the
English School in International Studies, eds Cornelia Navari and Daniel Green (Chichester:
Wiley-Blackwell, 2014), 91–108. On the basis of practices such as these, Keene proposes to
shift the focus from the expansion of international society, to its stratification as the master
concept to understand its historical development. See Keene, ‘The Standard of ‘Civilisation’,
the Expansion Thesis and the 19th-century International Social Space’, Millennium 42, no.
3, (2014): 651-673. See also Gerry J. Simpson, Great Powers and Outlaw States: Unequal
Sovereigns in the International Legal Order (Cambridge: Cambridge University Press,
2004).
38. Art. 38(1) ICJ Statute.
Aalberts 777
treaty-making is then hard to reconcile with a lack of civilisation of one of the partners if
that is defined in terms of institutions, as it is in the positivist account. The easy option
out would have been to declare the treaties void, but this was hindered by the fact that
these treaties in many cases served as a basis for sovereignty claims of colonial powers
within the African continent;39 a political-legal conundrum indeed.
There was no uniform legal standpoint to solve this puzzle.40 A most radical view was
put forward by John Westlake, who was a key publicist on the colonial issue at the
Institute de Droit International, and was most explicit in the denial of any sovereign or
legal status to ‘natives’. He rejected the argument of transferred or derivative sover-
eignty, relinquished on the basis of treaties, as sovereignty was a purely European con-
cept, of which the native could not have a conception. And how could one transfer
something he has no clue of?41 Colonial claims were original, and qualified as such under
the Law of Nations. The treaties then served at most a political purpose, but, in his view,
had no legal significance. However, in diplomatic practice the treaties were respected as
such among the colonial powers themselves.42 In this context it could be argued that
rather than their legal validity as such, what mattered was the mutual recognition of these
claims among the European players, which rendered them valid in practice.43
What is more, in spite of their dubious quality – both in terms of mutual understand-
ing, and in terms of the circumstances of their conclusions - as well as the legal contro-
versy surrounding them, the derivative title and legal significance of the treaties was
confirmed retrospectively in the Western Sahara case (1975). This case dealt with a
Moroccan claim to sovereignty over the Western Sahara, dating back to the Spanish
39. This has prompted questions regarding whether decolonisation in fact entailed a recovering
of an original sovereignty. See Charles H. Alexandrowicz, ‘New and Original States: The
Issue of Reversion to Sovereignty’, International Affairs 45, no. 3 (1969): 465–80.
40. For a comprehensive account of the different viewpoints see Koskenniemi, Gentle
Civilizer, ch. 2 and Antony Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism
in Nineteenth-Century International Law’, Harvard International Law Journal 40, no. 1
(1999): 1–80.
41. This is exacerbated by the fact that in most occasions the treaties were not drafted, but were
standard forms in the coloniser’s language sent in from the metropole, which often only
required the filling in of name and signature or cross. These colonial practices further com-
plicate the proposed revision of the expansion thesis, as proposed by Dunne and Little, and
Keene (see footnote 37), insofar as this is based on the presumption that social interaction
lies behind treaty-making practices in general. Keene’s social stratification could provide a
very useful alternative conceptual framework to the much criticised expansion thesis, but
the network analysis would need to take the actual context of the treaty making practices
into account – including not only the language and knowledge issue, and the coercive con-
sent, but also the fact that as an imperialist practice the treaties with indigenous rulers in fact
served intra-European order between colonial powers.
42. Koskenniemi, Gentle Civilizer, 127–8, 138–41 identifies an alternative intermediate posi-
tion, namely that colonial title was original rather than derivative, and the relevance of the
treaties consisted in their evidence of ‘the peacefulness of the possession claimed by the
colonizer’. This latter point is rather ironic given the actual circumstances in which the trea-
ties often were drafted.
43. Henk L. Wesseling, Verdeel en Heers. De Deling van Afrika 1880–1914: Aula, 2003), 127.
confiscation versus its status as terra nullius, which makes it available for occupation
and appropriation. In its advisory opinion the International Court of Justice concluded
that:
Whatever differences of opinion there have been among jurists, the State practice of the relevant
period [1884] indicates that territories inhabited by tribes or peoples having a social and
political organization were not regarded as terra nullius. It shows that in the case of such
territories the acquisition of sovereignty was not generally considered as effected unilaterally
through ‘occupation’ of terra nullius by original title but through agreements concluded with
local rulers. Such agreements with local rulers, whether or not considered as an actual ‘cession’
of the territory, were regarded as derivative roots of title, and not original titles obtained by
occupation of terra nullius.44
But where does this leave the uncivilised native rulers as signatory parties to alleged trea-
ties of cessions? The ambiguity is nicely captured by Oppenheim in his observation that
[C]ession of territory made to a member of the family of nations by a State as yet outside that
family is real cession and a concern of the Law of Nations, since such State becomes through
the treaty of cession in some respects a member of that family. … No other explanation of these
and similar facts [such as that these non-sovereign entities engaged in sovereign behaviour] can
be given except that these [non-European] not-full Sovereign States are in some way or another
International Persons and subjects of International Law.45
Hence, in the scheme of argumentation that appears to reflect contemporary practice

most closely, non-European states were first acknowledged to be more or less, or par-
tially, sovereign. In any case sovereign enough to enable the transferral of both rights and
status – to dispose of themselves46 – as a matter of exercising this partial sovereignty.
After all, the right to enter into international treaties – including ones that restrict sover-
eign power – is an attribute of state sovereignty.47 Subsequently, sovereignty was defined
in terms of its origin as a European institution, a ‘gift of civilisation’,48 which hence by
definition did not and could not apply to uncivilised nations. In the final analysis then,
barbarian entities were lacking both sovereignty rights and full legal personality because
they were excluded from – or positively formulated: not yet recognised as members of
– the Family of Nations. By adhering to the constitutive doctrine of statehood, such sta-
tus was conditional to participation in the Family of Nations, and such admission in turn
depended on the exclusive discretionary act of recognition by established members of
that Family, and application of the notorious standard of civilisation (SoC). While sover-
eign statehood was conceived a natural condition of European entities, the origins of
which are ‘beyond history and inquiry’,49 in the case of non-European entities
44. Western Sahara Case, Advisory Opinion, ICJ Reports, 1975, para. 80.
45. Lassa Oppenheim, International Law: A Treatise, Vol. I (London: Longmans, Green and
Co., 1912), 86, 110.
46. Grovogui, Sovereigns, Quasi Sovereigns, and Africans, 79.
47. S.S. Wimbledon case, PCIJ Series A, No.1 (1923), 25.
48. Koskenniemi, Gentle Civilizer, 86, 110.
Aalberts 779
international personality and sovereign statehood were not to be presumed but had to be
endowed. This resulted in the dubious consequence of the constitutive doctrine, namely
that the European powers were the judges in their own colonial cases.50
When Anghie rhetorically wonders what the commonplace ‘international law governs
sovereign states’ means when non-European communities were denied that status,51 this
very practice reveals how it operates as a productive power and ordering device, that not
merely regulates interactions between given entities, but generates its own subjects and
objects. International law in this context operates as a juridical rule, as an instrument of
the sovereign power to say no and to exclude on the basis of deviance from an alleged
universal and objective standard.52 But this sovereign power is itself not a given or prior
subject, and the authoritative source of law, as positivist doctrine would have it. Rather,
as Anghie also argues, it is in the colonial encounter that the Europeans are produced as
the original sovereign powers who command and impose their universal law vis-à-vis the
uncivilised. The latter who in turn fall within the orbit of international law, and are rec-
ognised as partially or proto-sovereign for the purpose of their own subjugation, yet are
produced as outlaws that need to be disciplined and civilised via sanctions and coercions
at the same time.53
The aforementioned political-legal ambiguity of the constitutive doctrine was further
exacerbated by the fact that the discretionary legal powers of the established civilised
core were not bound to any explicit criteria to define the standard itself. Whereas Gong
summarises a list of five requirements that generally were identified with the SoC
(including Vitoria’s principle of guarantee of freedom of travel, commerce and religion
of foreigners), it was a rule of customary law that was quite flexible in practice, as also
transpires from the ‘subjective requirement’ of adherence to ‘accepted norms and prac-
tices of the “civilized” international society’.54 Schwarzenberger’s characterisation of
the standard as ‘elastic but, nevertheless, relatively objective’ is telling in this context.55
The objectivity of the SoC was namely based on the conception of the difference between
alien societies to one’s own: civilisation was ‘not part of some rigid classification but a
shorthand for the qualities that international lawyers valued in their own societies, play-
ing upon its opposites: the uncivilized, barbarian and the savage’.56 While mythical and
impressionistic, the existence of a ‘standard’ provided its own legitimacy: ‘the existence
50. Gerrit W. Gong, The Standard of ‘Civilization’ in International Society (Oxford: Clarendon
Press, 1984), 61.
52. Michel Foucault, The History of Sexuality. I. An Introduction (New York: Pantheon,
1978), 135.
53. This resonates with Foucault’s suggestion to move from a theory of sovereignty to a theory
of dominations which reveals ‘how actual relations of subjugation manufacture subjects’
(Michel Foucault, Society Must Be Defended: Lectures at the Collège de France 1975–1976
[New York: Picador, 2003 (1976)], 45).
54. Gong, Standard of ‘Civilization’, 14–15.
55. Georg Schwarzenberger, A Manual of International Law (Abingdon: Professional Books,
1976), 84 quoted by Gong, Standard of ‘Civilization’, 14.
56. Koskenniemi, Gentle Civilizer, 103.
of a language of a standard still gave the appearance of fair treatment and regular admin-
istration to what was simply a conjectural policy’.57
Contrary to a common refutation, the subjective element of the SoC did, however, not
entail the racialisation of international politics and law per se. Originally, the distinction
between civilisations was indeed based on racial studies. One of its most prominent
advocates, James Lorimer, famously declared that ‘[n]o modern contribution to science
seems destined to influence international politics and jurisprudence to so great an extent
as that which is known as ethnology, or the science of races’.58 The knowledge from
racial studies led to his infamous tripartite categorisation of humanity into a civilised
zone, a barbarous zone and a savage zone, that provided the basis for the further develop-
ment of the SoC.59 However, under influence of the legal positivist turn the focus of
attention – or at least the official discourse – shifted from racial features to institutions,
as also follows from Westlake’s formulation that the ‘difference between civilized and
uncivilized man [for the lawyer consists] in the presence or absence of certain institu-
tions’.60 Indeed, the fixed hierarchy based on ‘immutabilities of race and colour’ that
would follow from racial premises in fact contradicts with the principles of progress
underlying the civilising mission: ‘At least in theory, the standard of “civilization” was
colourblind. It discriminated neither in favour of, nor against, non-white, non-European
countries.’61
This focus on institutions as a test for civilisation and hence entitlement to full rec-
ognition as an international person allegedly was informed by the commitments of
legal persons under international law to protect the life, liberty and property of foreign-
ers, as also transpired from Vitoria’s writings.62 Apart from neglecting the colonial
expediency of the standard, such a focus, however, does not nullify its Eurocentric
self-referentialism as the institutions were defined in terms of their similarity to
European political infrastructure of the day.63 And whereas in principle the SoC left
room for improvement for the uncivilised, at the same time the liberal modernisation
notion in combination with the language of a ‘standard’ entails a misleading reference
to civilisation as a definite goal and specific level to be reached in order to be (or gain)
equal(ity) as international persons. That this was misleading follows from the combi-
nation of the elasticity of the SoC in relation to its alleged objectivity:
57. Koskenniemi, Gentle Civilizer, 135, emphasis omitted.

58. James Lorimer, The Institutes of the Law of Nations: A Treatise of the Jural Relations of
Separate Political Communities, Vol. II (Edinburgh: Blackwood, 1883), 93.
59. Lorimer, Institutes, 101.
60. John Westlake, Chapters on the Principles of International Law (Cambridge, 1894), 137.
On the basis of the same quote Anghie, Imperialism, 55 maintains that this shift to the
character of institutions ‘facilitated the racialization of law by delimiting the notion of
law to very specific European institutions’. Colonialism was hence based on the racialisa-
tion of sovereignty in his view (Anghie, Imperialism, 100 and passim; see also Grovogui,
Sovereigns, Quasi Sovereigns, and Africans). This conclusion, however, seems to conflate
‘race’ with ‘culture’.
61. Gong, Standard of ‘Civilization’, 53.
62. Schwarzenberger, ‘Standard of Civilisation’, 220.
63. See also Keal, European Conquest.
Aalberts 781
Like Sisyphys the less ‘civilized’ were doomed to work toward an equality which an elastic
standard of ‘civilization’ put forever beyond their reach. Even to attain ‘civilized’ status … was
not necessarily to become equal. The ‘civilized’ had a way of becoming more ‘civilized’ still.64
As the standard was derived from the gap between civilised and uncivilised, or more
specifically, the differences between European and non-European societies, there was no
absolute threshold to be reached. Instead, the production of the colonial subject as proto-
sovereign was an ongoing, reiterative process and normative force.65 Moreover, it
remained dependent upon judgment of the gap between the level of civilisation of the
periphery in terms of the core. However, by definition the ‘other’ is and always will be
different, and hence not (as) civil (as) or like ‘us’. This is what Anghie has labelled the
dynamic of difference: ‘the endless process of creating a gap between two cultures,
demarcating one as “universal” and civilized and the other as “particular” and uncivi-
lized, and seeking to bridge the gap by developing techniques to normalize the aberrant
society’.66 This then translated into the famous ‘white man’s burden’,67 and his responsi-
bility to bring civilisation and salvation to the barbarian and the savage, by replacing
native institutions by European sovereignty and guardianship.68
While the imperialist project is – for obvious reasons – usually depicted as a project
of exclusion of non-European states from the Family of Nations and its concomitant
privileges, the above discussion reveals at least two more intricate ways in which 19th-
century political-legal imaginaries and practices subjectivated the indigenous entities
within a global legal order. As Keene suggests, they were insiders and outsiders at the
same time;69 or as argued here, they became outsiders through their very capacity as
insiders. On the one hand, they were constructed as legal subjects of the imagined global
legal regime through the treaty-making practices or rituals by which they officially ceded
their ownership (and in a sense their sovereign identity) to the colonial powers. On the
other hand, while excluding the non-European as equal sovereigns from the Family of
Nations, the SoC at once entailed their inclusion as objects in the domain of international
law through the ‘universal’ discourse of civilisation and humanitarianism.70
In other words, rather than a mere denial of their identity (both on the basis of their
particularity and their failure to meet the universal standard), non-European entities were
endowed with a subjectivity that rendered them subjects of law and ‘outlaws’ at the same
time, as Oppenheim’s remarks also illustrate. And like the Indians in Vitoria’s treatise,
this inclusion into the system was a double-edged sword, as it not only included their
own participation in the legitimation of their imperial subjection, but also rendered the
SoC applicable, which exposed the fundamental differences between the civilised core
64. Gong, Standard of ‘Civilization’, 63.

65. Cf. Judith Butler, Bodies that Matter: On the Discursive Limits of ‘Sex’ (New York:
Routledge, 1993), 94–5.
67. Rudyard Kipling, ‘The White Man’s Burden’, McClure’s Magazine 12 (1899).
68. Koskenniemi, Gentle Civilizer, 130.
69. Keene, ‘The Standard of “Civilisation”’.
70. Gong, Standard of ‘Civilization’, 44–5; Koskenniemi, Gentle Civilizer, 130, who refers to
the discourse of exclusion-inclusion; Anghie, Imperialism, 238.
and savage periphery, which in turn rendered sovereignty and equality beyond the reach
of non-European states.
Globalisation of International Society

Against the backdrop of the age(s) of imperialism, the 1960 General Assembly Resolution
1514 (XV) heralds a new era in international relations, which entailed a de-ideologisation,
homogenisation and equalisation of the sovereignty game.71 The foundational principles
of universality and equality were translated into the membership rules of the United
Nations, which would be open to all ‘peace-loving states’, regardless of their internal
architecture and ideology.72 This split between internal and external sovereignty allegedly
signified an important break from colonial practices.73 It was also informed by a shift in
the legal rationality of equality: whereas in the heydays of the imperialist era Lorimer had
claimed that an equal status requires an empirical basis,74 in the early 20th century
Oppenheim turns the argument around and addresses equality as an attribute of a sover-
eign status.75 More specifically, equality before law is an invariable attribute of interna-
tional legal personality, which in turn renders all other inequalities irrelevant from a legal
perspective, as these are social or political, but not legal facts. This viewpoint, based on a
separation of substantial or empirical equality and formal or legal equality, is almost
directly translated into the 1970 General Assembly Resolution 2625 (XXV) on Principles
of International Law Concerning Friendly Relations, which emphasises juridical equality
71. Declaration on the Granting of Independence to Colonial Countries and Peoples, General
Assembly Resolution 1514 (XV), December 14, 1960. See also Simpson, Great Powers and
Outlaw States.
72. Art. 4(1), UN Charter. In the Admissions case the ICJ concludes that Art. 4(1) consists
of an exhaustive list of criteria for membership (Conditions of Admission of a State to
Membership in the United Nations, Advisory Opinion, ICJ Reports 1948, 57). Notorious
exemptions to the new practice are the non-recognition of Southern Rhodesia and the South
African homelands due to their racist regimes.
73. Jackson in this regard distinguishes between empirical and juridical statehood, and posi-
tive and negative sovereignty (Robert H. Jackson, Quasi-States: Sovereignty, International
Relations and the Third World [Cambridge: Cambridge University Press, 1990]). For a criti-
cal analysis of his ‘quasi-statehood’ thesis and the implicit normative scale that underlies it,
see e.g. Roxanne Lynn Doty, Imperial Encounters: The Politics of Representation in North-
South Relations (London: University of Minnesota Press, 1996) and Tanja E. Aalberts, ‘The
Sovereignty Game States Play: (Quasi-)States in the International Order’, International
Journal for the Semiotics of Law 17, no. 2 (2004): 245–57.
74. ‘All States are equally entitled to be recognized as States, on the simple ground that they are
States; but all States are not entitled to be recognized as equal States, simply because they
are not equal States’ (Lorimer, Institutes, 1884: 260).
75. ‘States are by their nature certainly not equal as regards power, extent, constitution, and the
like. But as members of the community of nations they are equals, whatever differences
between them may otherwise exist. This is a consequence of their sovereignty’. Oppenheim,
International Law: A Treatise. Volume I, 19.
Aalberts 783
of all states – both qua membership status and qua their rights and duties – irrespective of
their economic, social and political differences.76
The universalisation of the equality principle as such symbolises a fundamental
reversal of legal practices. This radical break with the colonial practices is facilitated
by a shift from the constitutive to the declaratory doctrine, which means that legal
personality is no longer dependent upon a formal act of recognition, but follows from
the empirical facts of statehood itself. It is further substantiated by the renunciation of
any criteria of institutional preparedness, which was the one of the justificatory logics
of the SoC in the 19th century.77 Whereas decolonisation on the one hand entailed the
homogenisation of the international society by levelling it to one dominant category of
sovereign and equal statehood, on the other hand the model itself allows for heteroge-
neity as ‘the right to differ is now proclaimed as one of the attributes inherent in the
very notion of sovereignty’.78 Or at least, such pluralism or tolerance would follow
from the decoupling of sovereignty from a particular set of cultural and institutional
practices, as is the premise of the UN Charter and was reconfirmed in Resolutions
1514 (XV) and 2625 (XXV).
However, the universalisation of sovereignty as the right to be different and equal
at the same time as the foundation of modern international society is only part of the
story. For one thing, ‘peace-loving’ as a condition for membership is vague and broad
enough a description to include other considerations as indicators of such peace-loving
character, such as the popular links with democracy in the liberal international para-
digm that will be elaborated below. Moreover, while it is generally accepted that the
constitutive doctrine that was conducive to the imperialist project has now been
replaced by a declaratory conception of statehood, the ‘international community’ still
needs to judge as to whether the conditions are fulfilled. As Lauterpacht has pointed
out: facts cannot exist without a subject to know it.79 But apart from the possible
continuation of exclusionary practices through denial of statehood, what is of most
interest to our current discussion is how the principle of sovereign equality itself pro-
vides the parameters for ordering and making distinctions between states and disciplin-
ing of those that do not adhere to the rules and norms of contemporary international
76. Declaration on Principles of International Law Concerning Friendly Relations and

Co-operation among States in Accordance with the Charter of the United Nations, GA
Resolution 2625 (XXV), 24 October 1970.
77. The decoupling of rights and capabilities is stated most unequivocally in Arts 3 and 5 of GA
Resolution 1514 (XV), 1960: ‘Inadequacy of political, economic, social or educational pre-
paredness should never serve as a pretext for delaying independence’ and ‘Immediate steps
shall be taken … to transfer all power to the peoples of those territories, without any condi-
tions or reservations’. This was a complete reverse from the provisions of the 1885 Berlin
Act, which identified deficiency in civilisation as the legitimate ground for colonialism.
78. Prosper Weil, ‘Towards Relative Normativity in International Law?’, American Journal of
International Law 77, no. 3 (1983): 413–42, 419.
79. Hersch Lauterpacht, Recognition in International Law (Cambridge: Cambridge University
Press, 1948).
society.80 In addition, there are persistent calls within the liberal internationalist para-
digm to formalise such distinctions, which could be identified as rule through
equality.81
While in political discourse sovereignty is often idealised as some kind of absolute
status of autonomy, freedom and privilege, in legal discourse such rights are invariably
linked to an extensive set of duties and responsibilities. As formulated by the ILC:
States establish themselves as equal members of the international community as soon as they
achieve an independent and sovereign existence. If it is the prerogative of sovereignty to be able
to assert its rights, the counterpart of that prerogative is the duty to discharge its obligations.82
With the emphasis on duties as opposed to rights, sovereignty entails a task to fulfil,
rather than a freedom to indulge.83 Crucially, the scope of sovereign obligations has mul-
tiplied in the course of the 20th century. While they were still mainly formulated as a
negative duty to respect each other’s sovereign rights in the beginning of the 20th cen-
tury,84 this was significantly expanded after the Second World War through notably the
development of the human rights regime and the emergence of so-called erga omnes
obligations vis-à-vis the international community as a whole.85 In other words, the con-
tent and scope of sovereignty is set by the legal rights and duties as its attributes. These
in turn are contingent and evolve in light of normative developments in international
relations,86 which raises the question of who gets to identify the universal norms of con-
temporary international society?
In any case, as international legal subjects, states not only are bearers of power, author-
ity and sovereign privileges, but are subject to international legal protocols and regimes of
knowledge that empower them as subjects and structure their possible field of action,87 as
80. See also Tanja E. Aalberts and Wouter G. Werner, ‘Sovereignty beyond Borders: Sovereignty,
Self-Defense and the Disciplining of States’, in Sovereignty Games: Instrumentalising State
Sovereignty in Europe and Beyond, eds Rebecca Adler-Nissen and Thomas Gammeltoft-
Hansen (Basingstoke: Palgrave, 2008), 129–50.
81. For an alternative proposal for reform of the international system based on a dualistic
order that encompasses both sovereign equality and human rights, but seeks to avoid a
new form of hegemonic international law and exclusion, see Jean L. Cohen, Globalization
and Sovereignty. Rethinking Legality, Legitimacy, and Constitutionalism (Cambridge:
Cambridge University Press, 2012).
82. Yearbook of the International Law Commission 1973, II, p. 177.
83. To illustrate, the 1949 Draft Declaration on Rights and Duties of States by the International
Law Commission lists four rights as opposed to ten duties (www.un.org/law/ilc/texts/declar.
htm) and also most articles in the 1970 Declaration on Friendly Relations are formulated in
terms of international obligations. See Aalberts and Werner, ‘Sovereignty Beyond Borders’.
84. Island of Palmas case, Permanent Court of Arbitration 1928, 2 RIAA 829, 839.
85. While there is not an exclusive list of such norms, the prohibition of genocide, slavery,
racial discrimination and aggression are recognised as examples. See Barcelona Traction
case (Second Phase), ICJ Rep 1970 para. 33–34.
86. Nationality Decrees in Tunis and Morocco case, PCIJ, Series B, no. 4 (1923), 24.
87. Michael Dillon, ‘Sovereignty and Governmentality: From the Problematics of the “New World
Order” to the Ethical Problematic of the World Order’, Alternatives 20, no. 3 (1995): 323–68.
Aalberts 785
also transpired from the discussion above. This means that rights are not just a privilege
granted to legal subjects, but constitute their very personality and enable in Foucaultian
terms the conduct of (their) conduct (governmentality).88 What is more, they further the
normalisation of the members of society, as they are based on a normative or moral idea
of what subjects are supposed to be by their ‘nature’,89 based on the metavalues of con-
temporary international society.90
This also feeds into Foucault’s somewhat cryptic claim that ‘the law operates more
and more as a norm’. In this regard he sought to distinguish between different disposi-
tions of law – as sovereign command, constraint and sanctions on the one hand, and in
its productive modality as a regulatory mechanism and technology of governmentality,
on the other.91 Crucially, these norms are not exogenous (derived from either some tran-
scendental source like Vitoria’s natural law or the sovereign command by European
colonial powers), but emerge from ‘the group’s reference to itself’, which is why Ewald
identifies them as ‘social laws’.92 Norms in this regard refer to the particular society,
which aims to regulate, order and produce itself and its members on the basis of equality
and universality through these very norms. Moreover, these norms not only work in the
traditional sense as rules of behaviour, but also function as a standard of measurement, a
rule of judgement to distinguish between the normal and the abnormal, to identify gaps
and manage deviance.93
Different historical variations of such classifications can be identified – civilised versus
uncivilised, advanced versus backward, developed versus developing (or failed states),94 and
in its most recent version: liberal versus illiberal or rogue (and failed) states as proclaimed
88. Michel Foucault, ‘The Subject and Power’, Critical Inquiry 8, no. 4 (1982): 777–95;
Michel Foucault, ‘Governmentality’, in The Foucault Effect: Studies in Governmentality,
eds Graham Burchell, Colin Gordon and Peter Miller (Chicago: University of Chicago
Press, 1991), 87–105. For a more elaborate discussion, see Tanja E. Aalberts, Constructing
Sovereignty between Politics and Law (London: Routledge, 2012).
89. Brent L. Pickett, ‘Foucaultian Rights?’, Social Science Journal 37, no. 3 (2000): 403–21,
405–6.
90. Christian Reus-Smit, The Moral Purpose of the State. Culture, Social Identity, and
Institutional Rationality in International Relations (Princeton, NJ: Princeton University
Press, 1999).
91. For recent contributions that discuss the power of international law from a Foucaultian per-
spective see, inter alia, Ben Golder and Peter Fitzpatrick, Foucault’s Law (London: Routledge,
2009); Nikolas Rajkovic, ‘ “Global Law” and Governmentality: Reconceptualizing the
“Rule of Law” as Rule “through” Law’, European Journal of International Relations 18,
no. 1 (2010): 29–52, and a special issue of the Leiden Journal of International Law 25, no.
3 (2012).
92. François Ewald, ‘Norms, Discipline, and the Law’, Representations 30 (1990): 138–61,
159, 154–5.
93. Ewald, ‘Norms, Discipline, and the Law; Nikolas Rose and M. Valverde, ‘Governed by
Law?’, Social and Legal Studies 7, no. 4 (1998): 541–51.
94. Anghie, Imperialism discusses these shifts from colonialism toward neo-colonial practices
of the mandate system and the Bretton Woods institutions, but does not include the liberal
versus illiberal distinction as a contemporary practice of the dynamics of difference.
most vehemently in the discourse on the New or Postmodern World Order and liberal inter-
nationalism. In this context there is a persistent call by scholars such as Anne-Marie Slaughter,
Michael Reisman, Allan Buchanan, John Rawls and Fernando Tesón for a qualified right to
differ among sovereign states based on an explicit link between universal liberal values and
peace as a natural order on the one hand, and illiberal and irrational regimes and aggression
on the other. Re-emerging in the context of the post-cold war ‘end of history’ discourse to
further progress and peace, the liberal internationalist paradigm materialised in international
politics through a ‘muscular humanitarianism’ and a practice of illegal but legitimate humani-
tarian interventions.95 After 9/11 it has become increasingly securitised, and the ensuing War
on Terror has been cast in terms of a global war against the enemies of civilisation.96
While there are some significant differences within this discourse,97 it is united in the
aim to redirect the legal rationality by claiming that states are not equal in their behaviour
according to the prevailing universal liberal standards of international society. Hence,
they should not be treated as equals, as this is detrimental not only to the well-being of
individual citizens (whose security the international community bears a responsibility to
protect), but also a vital threat to international order and security. This, however, would
not be a transformation of the legal order, but in the liberal internationalist view is an
acknowledgment – at last – of the different behaviours that states expose in their foreign
relations, and which are rooted in their domestic political regimes.98
As has been pointed out by others too,99 the logic mirrors that of the 19th-century SoC,
in that liberal statehood – whose precise content remains unspecified, but is loosely char-
acterised by human rights, market economy and some form of democracy – is naturalised
as a positive, objective and universal standard, a metavalue which is itself beyond scrutiny
but against which all other members of international society are measured. In a telling
quote, Slaughter for instance explains that ‘the classification of a state as non-liberal rests
on evidence of adherence to fundamentally different values and institutions from those
prevailing in liberal states’ as a matter of fact, yet in the same breath suggest that the line
95. Anne Orford, ‘Muscular Humanitarianism: Reading the Narratives of the New Intervention’,
European Journal of International Law 10, no. 4 (1999): 679–711. For a comprehen-
sive overview of liberal internationalism, see Beate Jahn, Liberal Internationalism:
Theory, History, Practice (London: Palgrave Macmillan, 2013). Bishai explores the link
between IR liberal internationalism and liberal international law (Linda S. Bishai, ‘Liberal
Internationalism and the Law vs Liberty Paradox’, Journal of International Relations and
Development 15 [2012]: 201–23).
96. Mark Neocleus, ‘The Police of Civilization: The War on Terror as Civilizing Offensive’,
International Political Sociology 5 (2011): 144–59; Anghie, Imperialism, ch. 6.
97. Jahn, Liberal Internationalist; Simpson, Great Powers and Outlaw States; Ronald Janse,
‘The Legitimacy of Humanitarian Interventions’, Leiden Journal of International Law 19,
no. 3 (2006): 669–92.
98. Anne-Marie Slaughter, ‘International Law in a World of Liberal States’, European Journal
of International Law 6, no. 4 (1995): 503–38.
99. E.g. Benedict Kingsbury, ‘Sovereignty and Inequality’, European Journal of International
Law 9, no. 4 (1998): 599–625. Brett Bowden, ‘In the Name of Progress and Peace: The
“Standard of Civilization” and the Universalizing Project’, Alternatives 29, no. 1 (2004):
43–68.
Aalberts 787
between liberal and non-liberal states is drawn on ‘a deep intuition of similarity and shared
values, on the one hand, versus tacit recognition of difference and alienage on the other’.100
Obviously, the judgment call lies with the liberal states themselves, and as the boundary
between liberal and illiberal statehood is explicitly defined in terms of a dynamic of dif-
ference, or what Slaughter calls the ‘principle of legitimate difference’ as Grundnorm for
global governance,101 this seems to put those that are marked as illiberal in Sisyphus
shoes. This is even more so as sovereignty and equality are separated, and equality is
turned into a social fact, but with legal consequences: it is the similarly liberal states who
are equal in the zone of law, whereas the others are denunciated to a ‘zone of politics’.102
In its most extreme form, this discourse hence calls for a more explicit focus on conditional
equality and exclusion, with the reintroduction of differentiated legal codes and zones, and
ultimately the possibility of (preventive) forceful interventions to discipline those who are not
equally sovereign in the liberal fashion.103 However, as has been shown by numerous studies
on global governmentality, the norm of liberal international statehood also underlines mun-
dane policies on aid conditionality, good governance, democratic peace, and the Washington
consensus, as advocated by the major global governing institutions, to produce visible, respon-
sible and predictable actors. It informs the numerous indices of state performances and govern-
ance indicators, on the basis of which failed states are identified and policies for their
transformation, development and management are written, using mechanisms of more indirect
rule and discipline, such as the production and review of country reports, providing technical
assistance, and disseminating best practices.104
100. Anne-Marie (Slaughter) Burley, ‘Law among Liberal States: Liberal Internationalism and
the Act of State Doctrine’, Columbia Law Review 92, no. 8 (1992): 1907–96, 1920–1. See
also the Princeton Project that linked the academic debates to a concrete masterplan to
bifurcate the international order by creating a Concert of Democracies G. John Ikenberry
and Anne-Marie Slaughter, ‘Forging a World of Liberty under Law: U.S. National Security
in the 21st Century (Final Report of the Princeton Project on National Security)’, The
Woodrow Wilson School of Public and International Affairs, Princeton University.
101. Anne-Marie Slaughter, A New World Order (Princeton, NJ: Princeton University Press,
2005), 247–50.
102. (Slaughter) Burley, ‘Law among Liberal States’, 1917–21; Robert Cooper, The Post-Modern
State and World Order (London: Demos, 2001).
103. Lee Feinstein and Anne-Marie Slaughter, ‘A Duty to Prevent’, Foreign Affairs 83
(2004): 136–50; Fernando Tesón, ‘The Liberal Case for Humanitarian Intervention’, in
Humanitarian Intervention: Ethical, Legal and Political Dilemmas, eds J.L. Holzgrefe and
Robert O. Keohane (Cambridge: Cambridge University Press, 2003), 93–129.
104. See e.g. Timothy W. Luke and Gearóid Ó Tuathail, ‘On Videocameralistics: The Geopolitics
of Failed States, the CNN International and (UN)governmentality’, Review of International
Political Economy 4, no. 4 (1997): 709–33; Laura Zanotti, ‘Governmentalizing the Post-Cold
War International Regime: The UN Debate on Democratization and Good Governance’,
Alternatives 30, (2005): 461–48; Jacqueline Best, ‘Why the Economy Is Often the
Exception to Politics as Usual’, Theory, Culture and Society 24, no. 4 (2007): 87–109; Oded
Löwenheim, ‘Examining the State: A Foucauldian Perspective on International “Governance
Indicators”’, Third World Quarterly 29, no. 2 (2008): 255–27; Iver B. Neumann and Ole
Jacob Sending, Governing the Global Polity. Practice, Mentality, Rationality (Ann Arbor,
MI: Michigan University Press, 2010); Hans-Martin Jaeger, ‘UN Reform, Biopolitics, and
Together, these discourses and practices of contemporary international society shed a

different light on the right to sovereign equality as the basis of international order.
Contemporary international society, its universal and global character notwithstanding, still
executes its ordering functions on the basis of the alleged schizophrenic combination of
tolerance and civilisation.105 In this context, sovereign equality is not just a liberal right to
individuality, but by the same token operates as a norm to be equally sovereign, that is to say,
to be a sovereign of a similar (i.e. liberal) kind. Sovereign equality hence is more than a right
or a given norm, but entails, in Cynthia Weber’s formulation, a process of normativity,
‘whereby “regular subjects” and “standards of normality” are discursively co-constituted to
give the effect that both are natural rather than cultural constructs’.106 It is in this light that
we can understand how numerous rules, norms and standards that inform contemporary
international politics function as modern standards of civilisation that operate on the very
basis of an international society founded on the principle of sovereign equality.
Concluding Remarks
This article discusses equality as one of the guiding principles of international society
from the perspective of the politics of international law. However, contrary to a common
understanding of such politics, this article is not interested in the true motives behind
colonial or hegemonic legal reasoning – was international law instrumentalised accord-
ing to a sceptical reading of law in order to use it as an apology for colonial or hegemonic
politics; or did these scholars see law as an objective source and truly believe in its mes-
sage for distinguishing between just and unjust appropriation and the identification of
lawful conquest? This article is more interested in another politics of international law,
one that highlights how ‘[l]aw is politics, not because law is subject to political value
choice, but rather because law is a form that power sometimes takes’.107 Addressing
international law as a governmental technology, this article explored how international
law is not only an external rule of constraint imposed upon subjects from above, but is a
productive power by generating the subject it refers to. Or to put it differently, interna-
tional law as a regulatory mechanism produces the very object it seeks to manage and
control.108 And in the case of the colonial encounters, it does so by imagining a global
Global Governmentality’, International Theory 2, no. 1 (2010): 50–86; Tanja E. Aalberts

and Wouter G. Werner, ‘Mobilising Uncertainty and the Making of Responsible Sovereigns’,
Review of International Studies 37, no. 5 (2011): 2183–200; Kevin E. Davis, Angelina
Fisher, Benedict Kingsbury and Sally Engle Merry, eds, Governance by Indicators: Global
Power through Quantificaation and Ranking (Oxford: Oxford University Press, 2012).
105. Keene, Beyond the Anarchical Society, ch. 5. From a Foucaultian perspective, discipline and
freedom go hand in hand in the exercise of governmentality.
106. Cynthia Weber, ‘Performative States’, Millennium 27, no. 1 (1998): 77–95, 81.
107. Pierre Schlag, ‘Foreword: Postmodernism and Law’, University of Colorado Law Review
62, (1991): 439–53, 448.
108. Judith Butler, ‘Sexual Inversions’, in Feminist Interpretations of Michel Foucault, ed. Susan
J. Hekman (University Park, PA: The Pennsylvania State University Press 1996), 59–76, 64;
Foucault, Security, Territory, Population, 99.
Aalberts 789
legal order that the aborigines are part of and subjected to. Colonialism hence consisted
of a more intricate interplay between inclusion and exclusion as a basis for imagining
and ordering global rule. Yet, as Gong has also suggested, the standard of civilisation ‘is
not new, nor will it … ever become old. Some standard of civilization will remain a
feature of any international society’.109 After decolonisation, we can identify the imposi-
tion of an implicit standard of civilisation as the paradoxical outcome of the universalisa-
tion of the principle of sovereign equality and expansion of European international
society to a globalised one. The supposition of legally ‘like units’ in effect exposes dif-
ferences between formally sovereign states. Having sovereign equality as a right then
recoils in the form of the validation of equality in terms of sovereign being on the basis
of the underlying metavalue of legitimate (or ‘norm-alised’) statehood.
Acknowledgements
Earlier versions of this paper were presented at the Annual Convention of the ISA, San Francisco,
3–6 April 2013, the workshop ‘Constructions of Globality’, Copenhagen, 17–18 June 2013 and the
Annual Millennium Conference, 19–20 October 2013. I would like to thank Moran Mandelbaum,
Rens van Munster, Erna Rijsdijk, Ole Jacob Sending, Casper Sylvest, Jaap de Wilde, Wouter
Werner, Andrej Zwitter, the anonymous reviewers and Dimitrios Stroikos for their helpful
comments.
Funding
This research received no specific grant from any funding agency in the public, commercial, or
not-for-profit sectors.
Author Biography
Tanja E. Aalberts is senior researcher in the Department of Transnational Legal Studies, VU uni-
versity, Amsterdam and the Centre for the Politics of Transnational Law (www.ceptl.org). Her
primary research interest is the interplay between international law and international politics in
practices of governance. She is the author of Constructing Sovereignty between Politics and Law
(New IR series, Routledge, 2012) and has published in the European Journal of International
Relations, Review of International Studies and Journal of Common Market Studies.
109. Gerrit W. Gong, ‘Standards of Civilization Today’, in Globalization and Civilizations, ed.
Mehdi Mozaffari (London: Routledge 2002), 77–96, 94.

Rethinking The Principle of Sovereign Equality

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Rethinking The Principle of Sovereign Equality

Uploaded by

Copyright:

Available Formats

543731

MILLENNIUM Journal of International Studies

Rethinking the Principle of

4. Anghie, Imperialism.

The Age of Discovery

Vitoria here allegedly applies a kind of premodern standard of civilisation, based on a

16. Vitoria, De Indis, 127–8.

28. Vitoria, De Indis, 160–1.

31. Vitoria, De Indis, 161.

35. Anghie, Imperialism, 55.

Hence, in the scheme of argumentation that appears to reflect contemporary practice

57. Koskenniemi, Gentle Civilizer, 135, emphasis omitted.

64. Gong, Standard of ‘Civilization’, 63.

Globalisation of International Society

76. Declaration on Principles of International Law Concerning Friendly Relations and

Together, these discourses and practices of contemporary international society shed a

Global Governmentality’, International Theory 2, no. 1 (2010): 50–86; Tanja E. Aalberts

You might also like